December 11, 2012


Since the Supreme Court agreed Friday to hear two same-sex marriage cases, a cottage industry has sprung up to predict the outcome. Will the Defense of Marriage Act fall, giving legally married gay couples the same federal benefits as heterosexuals? Maybe so. Ten consecutive lower court rulings have found the law unconstitutional. Will the court dare to assert that states cannot bar same-sex marriage, even though about 30 have done so? It might. In 1967, the court wiped out state laws banning interracial marriage. But a limited ruling seems more likely, and the opposite outcome is possible. In fact, the cases are so laden with quirks that the only safe prediction is what the court's ruling won't change:
Same-sex marriage will continue. Nine states and Washington, D.C., marry gays, and their right to do so is not being challenged. More are expected to follow.
Churches in every state will continue to prohibit gay marriage if they wish. The First Amendment bars the government from meddling in church affairs, and that premise is not under challenge either.
Instead, the question is whether opponents of same-sex marriage can impose their beliefs in the secular world, where the Constitution — with its guarantee of equal protection under the law for all — gives them a problem, particularly in the case of the Defense of Marriage Act. When DOMA was passed in 1996, same-sex marriage was mostly theoretical. No state had legalized it. Now, thousands of gays are legally married, and the treatment DOMA imposes is explicitly inferior.